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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hymes v. DeRamus (1/15/2010) sp-6451

Hymes v. DeRamus (1/15/2010) sp-6451, 222 P3d 874

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

RITA M. HYMES and )
DONALD L. HYMES, )
) Supreme Court No. S- 12761
Appellants, )
) Superior Court No.
v. ) 4FA-03-01617 CI
)
LEONIE DeRAMUS, M.D. and )
JAMES M. POMEROY, ) O P I N I O N
)
Appellees. ) No. 6451 - January 15, 2010
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Robert B. Downes, Judge.

          Appearances: Donald and Rita Hymes,  pro  se,
          Fairbanks.  Megan R. Webb, Assistant Attorney
          General,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellees.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti,  and Winfree, Justices. [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
     
          A  prisoner and his wife, appearing pro se,  brought  a
lawsuit against a Department of Corrections doctor and physicians
assistant based on medical treatment the prisoner received  while
incarcerated at the Fairbanks Correctional Center.  The  superior
court  granted  summary  judgment to the  doctor  and  physicians
assistant because the prisoner did not exhaust his administrative
remedies.   The  prisoner and his wife appeal  this  and  several
other actions by the superior court.  Because at least one of the
prisoners  malpractice claims may not have  been  subject  to  an
exhaustion  requirement,  because the  prisoner  raised  material
factual  disputes  as  to  whether exhaustion  should  have  been
excused  for the remaining claims (based on an alleged threat  of
retaliation  and  alleged lack of access to a grievance  manual),
and  because  the  superior  court  should  have  considered  the
prisoners  medical expert affidavits, we remand to  the  superior
court.   On  all  other issues, we affirm the  decisions  of  the
superior court.
II.  FACTS AND PROCEEDINGS
          This  is the second time that this case is before  us.1
Donald Hymes, a federal prisoner, was temporarily incarcerated at
the  Fairbanks Correctional Center (FCC), a state facility,  from
May  2003  to August 2003.2  At the time of his incarceration  at
FCC,  Hymes  was  sixty-eight years old and had  various  medical
problems,  including  arthritis,  high  blood  pressure,  thyroid
problems, prostate and bladder problems, psoriasis, and a hernia.
He was also taking six prescription medications.
          In  July 2003 Hymes and his wife Rita Hymes filed a pro
se  lawsuit  against  Dr.  Leonie DeRamus  and  Michael  Pomeroy,
medical  personnel  who  worked with  the  Alaska  Department  of
Corrections  (DOC).3   Hymes  alleged  medical  malpractice   and
failure  to  report  elder abuse, while  Rita  alleged  negligent
infliction  of emotional distress (NIED) and loss of consortium.4
In  the  medical  malpractice  claim,  the  Hymeses  specifically
alleged  that  Hymes  was  not given the medications  and  proper
medical  care  that  he  needed while he was  incarcerated.   The
Hymeses stated in their complaint that even though Hymes had been
prescribed six medications by his Veterans Administration doctor,
he  received none of those medications during his first few  days
at  FCC.  According  to  the complaint, FCC  gradually  began  to
provide  Hymes with his necessary medications, but did so  in  an
inconsistent fashion.  The Hymeses alleged that the only  contact
Hymes  had with a medical doctor in FCC was fifteen minutes  with
Dr.  DeRamus.   They also alleged that prison guards  refused  to
accommodate Hymess bladder problems, and because he was prevented
from   using   the   restroom  during  visits,   Hymes   suffered
uncontrolled   urination  during  these  visits.    Also,   Hymes
apparently   suffered  from  high  blood  pressure  and   related
problems,  but  he was given only Tylenol when he  met  with  the
nurse  about  his worsening condition.  The Hymeses also  averred
that Hymes was improperly given substitute medications instead of
the  Methotrexate that he had been prescribed for  his  psoriatic
arthritis.   Finally, the Hymeses alleged that Pomeroy threatened
to   put  Don in the hole if he didnt stop telling people he  was
not getting adequate medical care . . . .5
          In  January  2004  Dr. DeRamus and  Pomeroy  moved  for
summary   judgment,  supporting  their  motion  with  an   expert
affidavit   from   Dr.  John  Robertson,  the   Health   Services
Administrator and Medical Director for DOC, who found no evidence
of   medical  malpractice.6   The  Hymeses  responded   with   an
opposition to the motion and a supporting memorandum stating that
          they did not receive the opportunity to complete discovery and
that  the  superior  court had not clarified  whether  they  were
required  to  have a medical expert witness.7   In  February  the
superior court issued an order explaining to the Hymeses that  if
they  did  not  provide  an  expert  affidavit  establishing  the
standard  of  care due from the defendants, breach  thereof,  and
damages  proximately caused by such a breach  of  duty  of  care,
summary  judgment  will be entered against them.8   The  superior
court gave them a deadline of March 27.9  On March 26 the Hymeses
requested a continuance.10  The superior court denied the request
and granted summary judgment in favor of Dr. DeRamus and Pomeroy.11
          On  appeal  we  reversed, concluding that the  superior
court  erred in giving the Hymeses only one additional  month  in
which to submit a responsive expert affidavit.12  We remanded with
instructions  to  grant the Hymeses a reasonable  continuance  to
obtain an opposing expert affidavit.13
          Upon  remand,  the case was assigned to Superior  Court
Judge Robert B. Downes.  On November 14, 2005, Judge Downes  held
a  status  hearing  with the parties. He gave the  Hymeses  until
January  15, 2006, to file their expert affidavit.  Judge  Downes
also  noted  on  the  record that he was acquainted  with  Donald
Hymes, one of the defense attorneys, and the father of one of the
defense  attorneys;  he  stated that he previously  ruled  in  an
unrelated  case involving Rita Hymes; and he asserted that  these
connections would not affect his decisions in the case.
          On  January  9,  2006,  the Hymeses  filed  the  expert
affidavit of Dr. Barbara J. Houk, a psychiatrist, and a notarized
letter  from Dr. Herbert Day, an osteopathic doctor.  Dr. DeRamus
and  Pomeroy filed a reply on February 14, 2006, arguing that the
Hymeses  failed to provide admissible evidence to defeat  summary
judgment   on  the  technical  malpractice  claims  (the   claims
requiring  a  medical  expert) and that the non-technical  claims
should   be   dismissed   because   Hymes   failed   to   exhaust
administrative remedies.
          When  Dr. DeRamus and Pomeroy filed a reply brief  with
regard  to their initial motion for summary judgment on  February
14, 2006,14 they also filed a motion to amend their answer and  a
new  motion  for summary judgment.  In the motion to  amend,  Dr.
DeRamus  and  Pomeroy sought permission to  add  the  defense  of
failure  to  exhaust administrative remedies.  In the new  motion
for  summary judgment they argued that all of the Hymeses  claims
were  barred  by  Hymess  failure to exhaust  the  administrative
remedies  available  through  the DOCs  grievance  process.   The
Hymeses did not oppose the motion to amend but did oppose the new
motion for summary judgment.
          On  February 15, 2006, Dr. DeRamus and Pomeroy moved to
strike Dr. Houks affidavit and Dr. Days letter.  They argued that
Dr.  Houk was not a qualified expert witness for this matter  and
that  Dr. Days letter was an inadmissible unsworn statement  with
no relevant information about the medical malpractice claims.
          The  superior  court entered an order on  February  23,
2006, addressing the Hymeses failure to file an opposition to the
original  motion  for  summary  judgment  when  they  filed   the
affidavit  and notarized letter.  The order advise[d]  Plaintiffs
          that they have the opportunity to submit a supplemental
Opposition if they so wish and gave a deadline of March 7,  2006.
The  Hymeses  did  not  file  a supplemental  opposition  to  the
original summary judgment motion, but they did oppose the  motion
to strike.
          On  April  10,  2006, the superior  court  granted  Dr.
DeRamus  and  Pomeroys motion to strike the expert affidavit  and
letter  submitted  by the Hymeses.  However, the  superior  court
provided the Hymeses with forty-five additional days to obtain an
expert  affidavit that would comply with the requirements  of  AS
09.20.185(a).
          Nevertheless, after only thirty-seven days, on May  17,
2006,  the  superior  court granted the new  motion  for  summary
judgment  regarding  failure to exhaust administrative  remedies,
dismissing  all  of Donald Hymess claims.  In the order  granting
the  motion  for summary judgment, the court also explained  that
Rita  Hymess loss of consortium claim was barred by the  doctrine
of  failure  to exhaust because it was a derivative  claim.   The
court  noted that the NIED claim survived the failure to  exhaust
defense  because it was an independent claim not subject  to  the
DOC  grievance  procedures.  Thus, the NIED claim  was  the  only
claim  remaining.  The Hymeses moved for reconsideration  of  the
courts  order,  asserting that Donald was a  victim  of  judicial
misconduct, due process violations, and a violation of the  right
to  jury  trial.   The  superior court denied  the  motion.   The
Hymeses then filed a petition for review, which we denied.
          In  December 2006 the Hymeses moved to file the  expert
affidavit  of  C. Michael Neuwelt, M.D.  In the alternative,  the
Hymeses  asked the superior court to refer the case to an  expert
advisory panel pursuant to Alaska Civil Rule 72.1.
          Also in December, Dr. DeRamus and Pomeroy filed a third
motion  for  summary judgment, seeking dismissal of  Rita  Hymess
NIED  claim.   In  the Hymeses response, they  asked  that  Judge
Downes recuse himself based on alleged bias.
          On  March  28,  2007,  the  superior  court  issued   a
comprehensive   order  that  resolved  the  various   outstanding
motions.   The court denied the Hymeses request for  recusal  and
their  request to include Dr. Neuwelts affidavit in  the  record.
It  also declined the request to appoint an expert advisory panel
under  Civil  Rule  72.1   Finally, the  superior  court  entered
summary judgment in favor of Dr. DeRamus and Pomeroy on the  NIED
claim.    Later   the  court  denied  the  Hymeses   motion   for
reconsideration  and  entered final  judgment  in  favor  of  Dr.
DeRamus and Pomeroy.  The Hymeses appeal, acting pro se.
III. STANDARD OF REVIEW
          We  review an award of summary judgment de novo.15   We
will  affirm only if there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.16
When  making this determination we draw all reasonable inferences
in favor of the non-moving party.17
          We  review a decision on a motion for recusal under the
abuse of discretion standard and will not overturn a trial judges
recusal  decision  unless it is plain that a  fair-minded  person
could not rationally come to that conclusion on the basis of  the
          known facts.18
          We review [a] trial courts decision to admit or exclude
evidence, including whether to exclude expert testimony . . . for
an abuse of discretion.19
          A trial courts interpretation of court rules presents a
question of law that we review de novo.20  However, we review the
superior courts decision not to appoint an expert advisory  panel
under  Civil  Rule  72.1 using the abuse of  discretion  standard
because  [t]rial  judges  are  not obliged  to  appoint  advisory
panels,  but rather have discretion to determine whether a  panel
is necessary.21
IV.  DISCUSSION
     A.   Whether It Was Error To Grant Summary Judgment in Favor
          of  Dr. DeRamus and Pomeroy Based on Hymess Failure  To
          Exhaust Administrative Remedies
          
          The  superior  court granted Dr. DeRamus  and  Pomeroys
motion  for summary judgment with regard to Donald Hymess medical
malpractice  and  elder abuse claims and Rita  Hymess  derivative
claim  for  loss of consortium.  The court concluded that  Donald
failed  to exhaust administrative remedies available through  the
DOC,  that  the failure was not excusable, and that both  Donalds
direct claims and Ritas derivative claim were thereby barred.
          The  Hymeses  argue that Donald Hymes was excused  from
exhausting administrative remedies because he did not  receive  a
prison handbook and was therefore unaware of the procedure for an
administrative  appeal.   They also claim  that  any  failure  to
exhaust is excusable because members of the DOC staff were biased
against  him, and that he would have been retaliated  against  by
being  placed in the hole (administrative segregation,  that  is,
solitary  confinement) if he filed a grievance.  Dr. DeRamus  and
Pomeroy  respond that the Department of Corrections has a  three-
step  administrative grievance procedure for medical  grievances,
that Hymes failed to exhaust this remedy, and that Hymess failure
to  exhaust  should not be excused.  We analyze these claims  and
defenses  in  light of our decision in Eufemio v.  Kodiak  Island
Hospital.22  In Eufemio we held that in applying the doctrine  of
exhaustion of remedies, a court must decide the following: (1) is
exhaustion  of remedies required; (2) if so, did the  complainant
exhaust those remedies; and (3) if not, is the failure to exhaust
remedies excused?23
          1.   Whether exhaustion of remedies is required in this case
               based on the factors set out in Eufemio
          1.   The superior court concluded that exhaustion was required in
this  case based on our decision in Broeckel v. State, Department
of  Corrections.24  There we held that the doctrine of exhaustion
of  remedies  generally  applies to prisoner  grievance  cases.25
However,  we  have also held that a trial court  should  use  its
discretion  in a particular case to determine whether  exhaustion
is  required,  balancing  the  interest  of  the  institution  in
applying  its  special  competence, correcting  its  errors,  and
discouraging  deliberate flouting of its  processes  against  the
complainants interest in the availability of adequate  redress.26
The  decision whether exhaustion of remedies should  apply  to  a
          given situation should be based on the particular case before the
court.27
          Where the administrative process offers a remedy,  even
an  incomplete  one, the policy interests behind exhaustion  will
usually  support  requiring exhaustion to  allow  the  agency  to
correct  its  own  errors  so as to moot judicial  controversies,
develop  an actual record, and discourage the deliberate flouting
of its processes. 28  On the other hand, where there is no remedy
at  all, and no available means for the error to be corrected  in
the  available administrative process, courts usually should  not
require  exhaustion.29  These situations are rare,  and  in  most
exhaustion  cases that we have analyzed, it has been  clear  that
there  was  some  remedy  to exhaust.  Thus  we  have  held  that
exhaustion  was  required where a prison ordered  a  prisoner  to
surrender  property that could have been restored to him  or  for
which  the  Department  of Corrections  may  have  been  able  to
reimburse  him,30  and where a building owner who  contested  the
number  of permits he was issued could have obtained the  correct
number  of  permits  through the procedures of  a  zoning  appeal
board.31   Likewise,  we have required exhaustion  in  employment
disputes  in  which  terminations can be  overturned,  privileges
restored, or suspensions ended.32  In Eufemio, a physician argued
that  he  should  not  have been required to exhaust  because  he
sought monetary damages rather than the available remedies in the
hospital grievance process, but we held this did not outweigh the
strong interests of the hospital in correcting its own errors and
to  identify  unfair or arbitrary processes,  such  as  a  biased
tribunal, and correct the deficiency to avoid litigation.33  If an
institution has any means of correcting errors, exhaustion should
typically be required.
          It  is  therefore necessary to determine whether Hymess
claims  were  of the type that could have been addressed  by  the
prison  grievance  process.  Many problems, including  some  that
could be raised as malpractice claims, may be corrected, and  the
damage  mitigated, if the claim is brought to  the  attention  of
prison  authorities  in a timely manner.   In  those  cases,  the
prisons interest in requiring exhaustion should carry significant
weight.  One example of such a claim is Hymess complaint that his
medications were provided inconsistently.  It is clear from  this
complaint  that  Hymes  was  aware  of  the  risks  and  problems
associated  with such a failure, and aware that immediate  action
could  remedy  the  problem  or  reduce  potential  damage  going
forward.  The  classic reasons for requiring  exhaustion  clearly
apply  to  this situation: The prison has an interest in  quickly
having  the  situation brought to its attention  and  having  the
chance  to  correct  an  error in its  systems  and  to  mitigate
damages.    The   department  should  be  given   the   immediate
opportunity  to evaluate allegedly substandard care  and  correct
its  own  errors.  This gives the department the  opportunity  to
ensure that no harm or deterioration occurs that could have  been
quickly  and  efficiently reversed by the grievance  process  and
that it is given the chance to apply its institutional competency
in prison administration to remedy defective practices.
          On  the  other hand, certain medical malpractice claims
cannot  possibly be remedied by any other means than compensatory
damages.  In a situation in which the medical treatment or  error
is  completely in the past, and the damage to the prisoners  body
is  irreversibly done, the prison has no means of correcting  its
own  errors.  The issue in prisoner malpractice claims  in  which
the  harm  is  completed is not that any remedies are potentially
inadequate to fully compensate the plaintiff, as was possible  in
Eufemio, but that the Department of Corrections process offers no
remedy  at  all.34  Such cases are in a different  category  than
those  in which exhaustion is excused for futility or inadequacy;
in  the futility/inadequacy cases a remedy exists, but the  court
finds  it  either  extremely  unlikely  to  be  provided,  or  so
inadequate  that it would not be in the interest of  fairness  to
require  it.  If a court finds no effective remedy is  available,
it will generally be an abuse of discretion to require exhaustion
of remedies.
          We  note  that one of Hymess claims may be of the  type
for  which  exhaustion is generally not required.  The  affidavit
from  Dr.  Neuwelt indicates that prescribing Hymes a  medication
called  Feldene may have been an error which caused  Hymes  long-
term  damage in the form of increase of blood pressure and  renal
impairment.  The affidavit from Dr. Houk states that it was error
to  replace  Methotrexate with Feldene  because  Feldene  is  not
appropriate to treat the specific problem Hymes had and that  the
provider  who  prescribed Feldene should  have  monitored  renal,
liver,  and  other functions.  By the time the elements  of  this
claim were discovered, Hymes was no longer under the care of  the
Fairbanks  Correctional  Center and  the  health  care  grievance
procedure could not correct or lessen Hymess problem.35
          The  initial  step  in  the  Eufemio  analysis  is   to
determine  for which claims exhaustion is required.   On  remand,
after allowing the parties sufficient opportunity to address this
question under the guidelines articulated above, the court should
determine  whether exhaustion is required for any of  the  claims
here.    For  any claim for which the court finds that exhaustion
was  required, it should then consider whether, under  the  third
part of the Eufemio test, exhaustion should be excused.
          2.   Whether exhaustion of remedies should have been excused for
               those claims Hymes was required to exhaust
          It  is  undisputed  that  Hymes  did  not  exhaust  his
remedies  for  any of his claims.  We therefore move  on  to  the
third  element  of the Eufemio exhaustion analysis:  whether  the
failure to exhaust remedies was excused.
          In  Bruns v. Municipality of Anchorage,36 we noted that
the  failure  to  exhaust may be excused where the administrative
remedy is inadequate37 or where the administrative procedures are
ineffective because of lack of meaningful access, bias, . . .  or
the possibility that the claimant could face irreparable harm  if
the administrative process is followed.38
          The  Hymeses  argue  that Donalds  failure  to  exhaust
remedies was excused because he lacked meaningful access  to  the
grievance process.  They allege that he was not given a  copy  of
          the prisoner handbook or any other source of the rules and
regulations  regarding  grievances.   Dr.  DeRamus  and   Pomeroy
respond  that DOC notified Hymes about inmate rules, rights,  and
procedures  and  that  the prisoner handbook  was  available  for
Hymess use.
          The record reveals that Donald Hymes signed part of  an
Orientation Verification on May 7, 2003.  But he refused to  sign
under  the statement that he received a Prisoner Handbook because
he said that he had not received the handbook.  Rather, he signed
under  the  statement that reads, I have been released  from  the
Fairbanks  Correctional Center for less than 90 days  and  verify
that  I understand the Prisoner Rules, Rights, and Procedures  at
this  institution.  Handbooks are available in each housing unit.
Hymes  signed  his name under this statement even though  he  had
just  arrived at the prison.  He had not been released  from  the
prison as the statement indicates.  Thus, the existence of Hymess
signature hardly proves what comes before it.  There is no record
evidence  that  he was given access to a handbook, which  Timothy
Lyden,  Standards  Administrator for the DOC, explained  contains
instructions  regarding  grievance  procedures  over  any  matter
within the Departments control, including an alleged violation of
the Departments regulations, a statute, or a procedure set out in
the prisoner handbook, and health care issues.
          The  Hymeses raised genuine issues of material fact  in
their  opposition  to the motion for summary judgment  and  their
motion  for  reconsideration as to whether Hymes  had  meaningful
access  to the grievance procedure.  In their opposition  to  the
summary  judgment motion, they asserted, Donald Louis  Hymes  was
never  given  a  copy  of  the  rules and  regulations  regarding
grievances.   In their motion for reconsideration of the  summary
judgment ruling, they asserted that Hymes asked if he could cross
out  received Prisoner Handbook  because he had not  received  it
but  was told he could not alter the form in any way and  had  to
sign  it.   They  claimed that Hymes asked whether  there  was  a
handbook and was told yes, but [h]e did not receive one, nor  did
he  ever  see  one.   Because his signature  on  the  Orientation
Verification  is under a clearly inaccurate statement  indicating
that  he  had been released from prison, the signature cannot  be
used  to  establish that he had any access to  the  handbook  and
grievance  procedure.   Indeed, the Hymeses  assertion  in  their
opposition to the motion for summary judgment was that Hymes  had
not received the prisoner handbook.39 [Exc.50] Hymess allegations
create  a  factual  dispute as to whether  he  lacked  meaningful
access to the prisoner handbook and the grievance procedures.
          The  Hymeses  also claim that Donald  would  have  been
retaliated  against by being placed in administrative segregation
or  solitary confinement  if he filed a grievance. [Exc. 29;  At.
Br.  9]  Under our rule regarding grounds for an excuse from  the
exhaustion requirement, we have included the question of  whether
following  the grievance procedure will threaten a claimant  with
irreparable  harm.40  We do not interpret this, as  the  superior
court did, to require that  Hymes show that he would in fact have
suffered irreparable medical harm had Pomeroy retaliated  against
          him.  We conclude rather that if Pomeroy did threaten Hymes with
the  punitive disciplinary sanction of solitary confinement, this
threat  of  retaliation excused him from following the  grievance
procedures  if  he  reasonably feared  he  would  be  irreparably
harmed.
          Hymes  raised  a  material fact dispute  regarding  the
threat  of  retaliation  in  his responses  to  Dr.  DeRamus  and
Pomeroys  interrogatories,  completed  in  December  2005.     He
stated: Dealing with Mr. Pomeroy was extremely stressful . . .  .
[A]t  one point he told me that if I were to tell anyone  that  I
was  not getting adequate treatment from him, he would see to  it
that I was put in the hole.
          We  note  that  there  is a potential  tension  between
Hymess claim that he was unaware of the grievance procedures  and
his  claim that he did not follow the procedures because  he  was
afraid  of retaliation.  However, we believe that it is  for  the
fact-finder  to  weigh   Hymess  testimony  regarding  these  two
potential  excuses  with  the other evidence  to  determine  what
actually took place.
          In   sum,  genuine  issues  of  material  fact   remain
regarding   whether  Hymes  was  excused  from   the   exhaustion
requirement   due  to  a  lack  of  meaningful  access   to   the
administrative process or a threat of retaliation.  Thus, it  was
error to grant summary judgment on the basis of Hymess failure to
exhaust administrative remedies.41
     B.   Whether  It  Was  Error To Decline To  Consider  Expert
          Affidavits Submitted by the Hymeses
          Although  the affidavits at issue were not relevant  to
the  two motions upon which the superior court decided this  case
the   motion   for  summary  judgment  for  failure  to   exhaust
administrative  remedies and the motion for summary  judgment  on
Rita   Hymess  NIED  claim   they  do  relate  to  Donald  Hymess
substantive  claim of medical malpractice.  Thus, the  affidavits
were  relevant  to  Dr. DeRamus and Pomeroys motion  for  summary
judgment  regarding medical malpractice, which must be  addressed
on  remand.   Thus, we address whether the superior court  should
have considered the affidavits.
          In  April  2006  the superior court  struck  Dr.  Houks
affidavit,   concluding  that  Dr.  Houk  lacked  the   training,
experience,   and  board  certification  in  a   relevant   field
necessary to serve as an expert.  In March 2007, as part  of  its
omnibus  order  granting  summary judgment  to  Dr.  DeRamus  and
Pomeroy,  the superior court also denied the Hymeses  request  to
file  the  expert  witness affidavit of Dr.  Neuwelt,  explaining
among  other  things that the affidavit did not meet  the  formal
requirements of Civil Rule 76, that the affidavit was filed  four
months after the deadline, and that all claims relating to  Hymes
had already been dismissed on May 17, 2006.
          The  Hymeses  argue that the superior  court  erred  in
excluding  the expert affidavits of Dr. Neuwelt and  Dr.  Houk.42
Dr. DeRamus and Pomeroy do not respond on the merits, noting only
that  the expert affidavits were not relevant to the motions  for
summary judgment ruled upon by the superior court.  But, as noted
          above, the expert affidavits are relevant to the medical
malpractice  issue,  which  the court  must  address  on  remand.
Accordingly,  we  address the claim that  the  expert  affidavits
should have been considered.
          Alaska   Statute  09.55.540(a)(1)  provides  that   the
plaintiff  in a medical malpractice action must prove the  degree
of  knowledge or skill possessed or the degree of care ordinarily
exercised  under  the  circumstances, at  the  time  of  the  act
complained of, by health care providers in the field or specialty
in  which  the defendant is practicing.  Alaska Statute 09.20.185
further provides:
          (a)   In  an  action  based  on  professional
          negligence,  a person may not testify  as  an
          expert   witness   on  the   issue   of   the
          appropriate  standard  of  care  unless   the
          witness is
               (1)  a  professional who is licensed  in
          this state or in another state or country;
               (2)  trained and experienced in the same
          discipline  or  school  of  practice  as  the
          defendant or in an area directly related to a
          matter at issue; and
               (3)  certified by a board recognized  by
          the  state  as having acknowledged  expertise
          and   training   directly  related   to   the
          particular field or matter at issue.
          (b) The provisions of (a) of this section  do
          not  apply if the state has not recognized  a
          board  that has certified the witness in  the
          particular field or matter at issue.
          
          Neuwelt Affidavit
          
          The  superior  court refused to consider  Dr.  Neuwelts
affidavit on several grounds: that it was not in the proper  form
under Civil Rule 76,43 that it was untimely, and that it did  not
meet the requirements of AS 09.55.540 because it was based almost
entirely on answers to hypothetical questions and thus failed  to
address the relevant standard of care, that the defendants lacked
knowledge  or  skill to meet the standard, and that Donald  Hymes
therefore  suffered  injuries that he would  not  have  otherwise
suffered  as a result.         We decline to endorse  refusal  to
consider a document for the failure of a pro se litigant to  meet
the technical requirements of the civil rules regarding page size
and  the  like,  without the litigant having  been  afforded  the
opportunity to meet the requirements after notice of them.  As to
the  timeliness of the submission, the superior court granted the
motion for summary judgment eight days before the deadline it had
itself  set.  Under these circumstances, the litigant is entitled
to  have  his  submission  considered.   As  to  the  substantive
question  whether Dr. Neufelts affidavit met the requirements  of
AS 09.55.540  we analyze the matter somewhat differently than the
superior  court.  It is true that Dr. Neuwelts affidavit contains
his  answers  to  hypothetical  questions,  but  these  were  all
          questions that may be relevant to Hymess medical malpractice
claim.   The questions track the claims in Hymess complaint,  and
they are almost exactly the same as the questions answered by Dr.
Houk  in  her  affidavit.   Accordingly, Dr.  Neuwelts  responses
assist   in   establishing   the  required   standard   of   care
under   AS   09.55.540(a)(1).   In   addition,   he   meets   the
qualifications  requirements as a board-certified rheumatologist.
As a rheumatologist, Dr. Neuwelt is an expert in the treatment of
diseases of the connective tissue.44  His curriculum vitae reveals
that  Dr. Neuwelt, who has been the Chief of Rheumatology at  the
Alameda County Medical Center in Oakland, California, and who has
held  clinical  professorships of medicine at the  University  of
California, San Francisco and Stanford University, has  extensive
experience  and  training  in  rheumatology.   Therefore,  he  is
qualified  to  testify regarding the physical effects  of  abrupt
discontinuation  of  the  drug Methotrexate,  which  Dr.  Neuwelt
identifies  as  the  gold  standard disease-modifying  agent  for
psoriatic arthritis.
          Houk Affidavit
          The   superior  court  found  that  Dr.  Houk  was  not
qualified  as  an expert in this case partly because  she  lacked
training   or  knowledge  in  correctional  medicine,   emergency
medicine,  endocrinology, orthopedics/the treatment of arthritis,
or  autoimmune diseases.  But these fields are irrelevant to  the
issue  before  the  court:   Could  Dr.  Houk  provide  testimony
relevant  to the standard of AS 09.55.540(a)(1) and did she  meet
the requirements of AS 09.20.185(a) as to licensure, training and
experience,  and certification directly relevant to  an  area  of
practice at issue in this case?  We turn now to those questions.
          Dr.  Houks affidavit reveals that she is a psychiatrist
and psychotherapist and that she is trained in treating a variety
of  mental  illnesses.  Her affidavit discusses the  relationship
between depression and hypothyroidism, two conditions which Hymes
allegedly  experienced.  She also discusses the  consequences  of
the  abrupt  discontinuation  of the  drug,  Methotrexate,  which
include depression.  These are areas about which she is qualified
to   testify   as  a  psychiatrist.   Turning  to  the   specific
requirements  of AS 09.20.185(a), appellees do not  contest  that
she  met  subsection  (1)  (licensure),  a  concession  that  the
superior  court  accepted and agreed with.  Dr.  Houks  affidavit
reveals  that  she  has  sufficient training  and  experience  in
psychiatry  and  psychotherapy and related  fields  to  meet  the
requirements of subsection (a)(2) (training and experience in  an
area  directly related to a matter at issue) to testify regarding
the  psychological effects of failing to adequately treat  Hymess
physical  conditions.45   However, as to  subsection  (a)(3),  it
appears that she lacked board certification in psychiatry.  Thus,
while  it  was an abuse of discretion for the superior  court  to
strike  Dr.  Houks affidavit on the basis that she did  not  have
sufficient training or experience in correctional medicine or the
other  specialities mentioned by the court, it appears  that  Dr.
Houk  lacked the required certification in psychiatry to testify.
On  the other hand, Dr. Houk indicated in her affidavit that  she
is  a diplomat[e] of the American Psychotherapy Association.   On
          remand, Hymes should be allowed to offer a qualified expert (or
show that Dr. Houk is in fact certified in a relevant area).
          Because   the   affidavit  of  Dr.  Neuwelt   met   the
requirements of AS 09.55.540 and AS 09.20.185, the superior court
must  consider it on remand.  The court should also  allow  Hymes
the  opportunity  to  submit an affidavit  of  a  board-certified
psychiatrist  in place of Dr. Houks affidavit (or show  that  Dr.
Houk is board-certified).46
     C.   Whether It Was Error To Grant Summary Judgment in Favor
          of  Dr.  DeRamus and Pomeroy in Relation to Rita Hymess
          NIED Claim
          The  superior  court  granted Dr. DeRamus  and  Pomeroy
summary judgment on Rita Hymess NIED claim, holding that she  did
not  meet the requirements for the bystander or preexisting  duty
exceptions to the general requirement of physical injury.
          The  Hymeses  appear to argue that it was  inconsistent
for  the  superior court to deny Dr. DeRamus and Pomeroys  motion
for  summary judgment regarding failure to exhaust administrative
remedies in relation to the NIED claim and then grant Dr. DeRamus
and  Pomeroys subsequent motion for summary judgment in  relation
to  the  NIED  claim.  Dr. DeRamus and Pomeroy respond  that  the
superior  courts  denial  of  the  motion  for  summary  judgment
regarding the failure to exhaust defense in relation to the  NIED
claim . . . did not constitute a grant of summary judgment in the
Hymes  favor,  but rather merely reflected that DeRamus  was  not
entitled  to  summary  judgment under  this  legal  theory.   Dr.
DeRamus  and Pomeroy assert (1) that it was not inconsistent  for
the  court to grant the new motion for summary judgment  under  a
different  legal theory,  and (2) that the Hymeses fail  to  make
any substantive challenge to the order dismissing the NIED claim,
so  this  court should deem any such challenge waived.  We  agree
with both propositions.
          The superior courts order granting summary judgment  in
favor of Dr. DeRamus and Pomeroy on Rita Hymess NIED claim is not
inconsistent  with  the  courts  earlier  order  denying  summary
judgment  on  the NIED claim on the basis of failure  to  exhaust
administrative remedies.  In the earlier order, the court  denied
summary judgment in relation to the NIED claim because as a  non-
prisoner,  Rita  was  not  obligated  to  exhaust  administrative
remedies.  The court granted summary judgment in the later  order
based on a substantive analysis of Ritas NIED claim.
          Because the Hymeses fail to make a substantive argument
regarding  the   merits of the NIED claim, they have  waived  the
issue  under our well-established rule that issues not argued  in
opening appellate briefs are waived.47  This rule applies equally
to pro se litigants.48  Although we require courts to provide some
procedural  guidance for a pro se litigant when it is clear  what
action  he or she is obviously trying to accomplish, the  failure
to  raise an argument in an opening brief leaves the other  party
with no notice or opportunity to respond to the argument.49
     D.   Whether It was an Abuse of Discretion for Judge  Downes
          Not To Recuse Himself
          In  the  order granting Dr. DeRamus and Pomeroy summary
          judgment on the NIED claim, Judge Downes also denied the Hymeses
request  for recusal, stating that he knows Hymes, bears  him  no
ill  will,  is  not biased against Mr. Hymes,  and  in  fact  has
enjoyed  [his] acquaintance.  Judge Downes had earlier  addressed
the   Hymeses   allegations  of  bias  in   his   order   denying
reconsideration  of  his decision granting summary  judgment  for
failure  to  exhaust.   In this order Judge  Downes  stated  that
[t]his  Court routinely entertains motions for summary  judgment,
and  to  do so is not misconduct, and that the Hymeses allegation
that  this  Court  is  biased  against  them  is  unfounded   and
unsupported . . . .
          On  appeal, the Hymeses argue that Judge Downes  should
have  recused  himself because he was biased against  them.   Dr.
DeRamus  and Pomeroy respond that the claims of bias  were  based
simply  on Judge Downes adverse rulings, and, as such, the claims
are not sufficient to show that the judges decision not to recuse
himself was an abuse of discretion.
          Alaska   Statute  22.20.020(a)(9)  provides  that   [a]
judicial  officer may not act in a matter in  which  .  .  .  the
judicial officer feels that, for any reason, a fair and impartial
decision cannot be given.  In Amidon v. State,50 we explained that
[s]ince  the  initial  determination  has  been  placed  in   the
discretion  of  the  trial judge, his decision  should  be  given
substantial  weight,  and the decision not to  recuse  should  be
reviewable  only for abuse of discretion.51  Also, in DeNardo  v.
Corneloup,52 we stated, [j]udges should recuse themselves if there
is  the  appearance of bias, but [b]y themselves, interpretations
of  the  law  are not sufficient to demonstrate the existence  of
bias.  53   We elaborated in DeNardo that [d]isqualification  was
never  intended to enable a discontented litigant to oust a judge
because of adverse rulings.54
          The  Hymeses make various references to judicial  bias,
but  they  lack a  persuasive argument that it was  an  abuse  of
discretion for Judge Downes to not recuse himself from the  case.
Their  arguments indicate that the Hymeses are merely  displeased
with Judge Downess interpretations of the law and adverse rulings
involving   the  exclusion  of  expert  affidavits.    Under   AS
22.20.020(a)(9)  and  the  cases  interpreting  it,  the  Hymeses
complaints  are insufficient to show that Judge Downess  decision
not to recuse was an abuse of discretion.55
     E.   Whether  the  Hymeses Waived Their  Argument  that  Dr.
          DeRamus  and  Pomeroys Treatment of Hymes Violated  the
          Eighth Amendment
          
          The  Hymeses  argue that Dr. DeRamus and Pomeroys  poor
treatment  of Hymes violated the Eighth Amendment of  the  United
States Constitution.56  Dr. DeRamus and Pomeroy respond that  the
claim  is waived because the Hymeses did not plead a claim  under
42  U.S.C.  section 1983 alleging a violation  of  their  federal
constitutional rights but rather only alleged medical malpractice
and negligence.
          We  have repeatedly held that a party may not raise  an
issue  for  the  first  time on appeal.57 In  Willoya  v.  State,
Department  of Corrections,58 we held that a prisoner waived  his
          Eighth Amendment claim by failing to raise it in the superior
court.59   The  present case is strikingly  similar  to  Willoya.
Here,  like  the plaintiff in Willoya,  Hymes alleged  negligence
based on medical treatment he received while incarcerated.60  Like
the plaintiff in Willoya, Hymes alleged a violation of the Eighth
Amendment for the first time on appeal.  As Willoya makes  clear,
the  Hymeses waived their Eighth Amendment claim because they did
not raise it in the superior court.
     F.   Whether  the  Superior  Court  Properly  Dismissed  the
          Hymeses Elder Abuse Claim on Summary Judgment
          
          The  superior  court granted Dr. DeRamus  and  Pomeroys
motion for summary judgment with respect to the Hymeses claim for
failure to report elder abuse.  Although the Hymeses do not  make
any substantive argument regarding elder abuse on appeal, they do
set  forth  the  language of AS 47.24.013(a) and AS 47.24.015(a),
which  are  provisions  of the elder abuse  statute.   They  also
state, [n]o one has done anything in Appellants case to honor the
intent of the foregoing statutes. I.e., those statutes appear  to
be  not  worth  the paper they are written on.  Dr.  DeRamus  and
Pomeroy respond that the Hymeses have waived any challenge to the
superior  courts dismissal of the claim because  they  failed  to
make  any kind of substantive argument.  In the alternative,  Dr.
DeRamus and Pomeroy argue that AS 47.24 does not create a private
cause of action, so the Hymeses failed to plead a viable claim.
          The  Hymeses  quotation of statutory  language  coupled
with the conclusory statement that [n]o one has done anything  to
honor the intent of the statute constitutes waiver for failure to
adequately brief the issue.61  Even if they had not waived  their
argument,  it  would  still  be without  merit.   Alaska  Statute
47.24.013(a) provides:
          If  a report received under AS 47.24.010
          regards  the  abandonment, exploitation,
          abuse,  neglect,  or self-neglect  of  a
          vulnerable adult who is 60 years of  age
          or  older  that is alleged to have  been
          committed  by  or to have resulted  from
          the   negligence  of  the  staff  or   a
          volunteer   of   an   out-of-home   care
          facility, including a facility  licensed
          under  AS 47.32, in which the vulnerable
          adult   resides,  the  department  shall
          transfer the report for investigation to
          the  long  term care ombudsman under  AS
          47.62.015.
          
Alaska  Statute  47.24.015(a) further provides that   [u]pon  the
departments  receipt of a report under AS 47.24.010 that  is  not
transferred under AS 47.24.013, the department, or its  designee,
shall promptly initiate an investigation to determine whether the
vulnerable  adult who is the subject of the report  suffers  from
abandonment,   exploitation,  abuse,  neglect,  or  self-neglect.
Nothing in these two provisions creates a private right of action
for  elder  abuse.  Rather, the provisions require  reporting  of
elder abuse and set out the procedures that shall be taken  if  a
report  is  received  by  the Department  of  Health  and  Social
Services.  As Dr. DeRamus and Pomeroy point out, the Act  intends
to protect against such alleged abuse by ensuring that reports of
harm  are  properly investigated and followed up  by  the  state.
Because  the elder abuse statute does not create a private  cause
of  action,  the  superior court did not err  in  dismissing  the
Hymeses claim on summary judgment.62
V.   CONCLUSION
          Because Donald Hymes had at least one malpractice claim
that may not have been subject to the exhaustion requirement, and
because  he  raised  material  fact  disputes  regarding  whether
exhaustion  should  have  been excused (for  lack  of  meaningful
access  to the DOC grievance procedure or the threat of  solitary
confinement  for continuing to complain about his treatment),  we
REVERSE  the  grant of summary judgment that  was  based  on  his
failure  to  exhaust the DOC grievance procedure and REMAND  this
case  to the superior court.  Because the Hymeses medical  expert
affidavits  should not have been excluded, those affidavits  must
be  considered  on  remand in order to determine  the  underlying
merits  of the Hymeses medical malpractice claim.  We AFFIRM  all
other decisions of the superior court.

_______________________________
     1     Many  of  the facts recited below are taken  from  our
opinion  in the first appeal in this case, Hymes v. DeRamus,  119
P.3d 963 (Alaska 2005).

     2    Hymes, 119 P.3d at 964.

     3     Id.   Mr.  Pomeroy  is  a physicians  assistant.   Dr.
DeRamus  is  a  collaborating physician  and  consultant  to  Mr.
Pomeroy.  Id. n.1.

     4    See id.

     5    Various other allegations regarding the alleged lack of
medical treatment are found throughout the complaint.

     6    Hymes, 119 P.3d at 964.

     7    Id. at 964-65.

     8    Id. at 965.

     9    Id.

     10    Id.

     11    Id.

     12    Id. at 964.

     13    Id. at 968.

     14    The Hymeses did not actually file an opposition to the
initial motion for summary judgment, but they did file the expert
affidavit of Dr. Houk and the notarized letter of Dr. Day, so Dr.
DeRamus and Pomeroy chose to respond.

     15    Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001) (citations omitted).

     16    Id.

     17    Id.

     18     Hanson  v.  Hanson, 36 P.3d 1181, 1183 (Alaska  2001)
(quoting R.J.M. v. State, 946 P.2d 855, 869-70 (Alaska 1997)).

     19     Maines  v. Kenworth Alaska, Inc., 155 P.3d  318,  323
(Alaska 2007).

     20    See Staso v. State, Dept of Transp., 895 P.2d 988, 990
(Alaska  1995)  (holding that interpretation and  application  of
Civil Rule 42(c) is a question of law that we review de novo).

     21     Kaiser  v.  Sakata, 40 P.3d 800,  805  (Alaska  2002)
(citing AS 09.55.536(a)).

     22    837 P.2d 95 (Alaska 1992).

     23    Id. at 98-99.

     24    941 P.2d 893 (Alaska 1997).

     25    Id. at 896.

     26    Eufemio, 837 P.2d at 99.

     27    See Ben Lomond, Inc. v. Municipality of Anchorage, 761
P.2d  119,  121  (Alaska  1988) (Whether  a  court  will  require
exhaustion  of  remedies turns on an assessment of  the  benefits
obtained through affording an agency an opportunity to review the
particular  action  in  dispute.)  (emphasis  added);  see   also
Eufemio,  837 P.2d at 99 (once clear that doctrine of  exhaustion
applies  to  type  of  case, court should  perform  balancing  in
deciding  whether  to  require exhaustion  in  particular  case);
McCarthy  v. Madigan, 503 U.S. 140 (1992) (superseded by  statute
as  recognized  in  Booth  v. Churner, 532  U.S.731  (2001))  (in
absence  of clear legislative mandate that particular  remedy  is
exclusive,  sound  judicial discretion  governs;  application  of
exhaustion balancing test requires attention be directed to  both
the  nature of the claim presented and the characteristics of the
particular administrative procedure involved).

     28    Broeckel, 941 P.2d at 896.

     29    See Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982)
(noting that [T]he exhaustion requirement has been dispensed with
where the administrative remedy is inadequate . . . .); see  also
Bruns  v.  Municipality of Anchorage, 32 P.3d  362,  371  (Alaska
2001) (same).

     30    Broeckel, 941 P.2d at 896.

     31    Ben Lomond, 761 P.2d at 122.

     32     See Eidelson, 645 P.2d at 183; Voight v. Snowden, 923
P.2d  778 (Alaska 1996); Eufemio v. Kodiak Island Hosp., 837 P.2d
95 (Alaska 1992).

     33    Eufemio, 837 P.2d at 99.

     34    See McCarthy v. Madigan, 503 U.S. 140 (1992) (where no
effective  remedy offered at all, improper to require exhaustion)
(Rehnquist, J., concurring).

     35     Neither  the policies and procedures  manual  of  the
Department  of  Corrections  nor the  regulations  governing  the
Department  of Corrections indicate that the department  has  any
authority  to pay any form of compensatory damages.  See  22  AAC
5.185, 5.190.

     36    32 P.3d 362, 371 (Alaska 2001) (holding that appellant
was  not  excused  from  exhausting his  administrative  remedies
because  there  remained  a  step in  the  administrative  appeal
process that was not demonstrably futile).

     37     Id. at 371 (citing Eidelson v. Archer, 645 P.2d  171,
181 (Alaska 1982)).

     38    Id. at 371 n.46.

     39    We note that these statements do not meet the standard
to  defeat  summary judgment under Jennings v.  State,  566  P.2d
1304,  1309  (Alaska 1977), because they are not in the  form  of
sworn affidavits.  If the trial court concluded that there was no
evidence  that  Hymes had no access to the handbook  because  the
statements  were  not in affidavit form, the  court  should  have
advised  the Hymeses of the necessity of putting their statements
in  affidavit form.  See Breck v. Ulmer, 945 P.2d 66, 75  (Alaska
1987)  (  We  believe  the trial court should  inform  a  pro  se
litigant  of the proper procedure for what he or she is obviously
trying  to  accomplish.) We reject the appellees contention  that
our  footnote in Hymes I   which discussed  expert testimony, not
the  testimony of a party  would have been sufficient  to  inform
the  Hymeses  of  the requirement for an affidavit  to  establish
facts within Hymess personal knowledge.  See Hymes, 119 P.3d 963,
966  n.12  (Alaska  2005) (explaining that expert  testimony  and
other  such  evidence  usually submitted  in  affidavit  form  at
summary   judgment   stage).   Likewise,  the   superior   courts
statements  in  its  memorandum decision to  strike  the  Hymeses
expert  affidavits,  which outline the  formal  requirements  for
affidavits, did not adequately advise the Hymeses of the need  to
submit  affidavits  outside of the specific  context  of  medical
experts in malpractice cases.

     40    Bruns, 32 P.3d at 371 n.46.

     41    The Hymeses argue that exhaustion of remedies should be
excused  for an additional reason: decision-maker bias.   Because
Donalds  assertions that he did not have access to the  grievance
procedure  and  feared retaliation provide  a  genuine  issue  of
material fact that warrants reversal of summary judgment, we need
not address the Hymeses additional argument.

     42    The Hymeses make no argument regarding the exclusion of
Dr.  Days letter.  Thus, we do not consider the admissibility  of
Dr. Days letter. See Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska
2001)  ([I]ssues  not  briefed  or  only  cursorily  briefed  are
considered waived . . . .).

     43     Alaska Civil Rule 76, entitled Form of Papers,  deals
with  such  matters as paper size, fonts, line spacing,  and  the
like.

     44     See  Websters  New World Dictionary of  the  American
Language 1220 (2d college ed. 1980).

     45     Indeed,  her  discussion of the consequences  of  the
failure  to  provide Hymes with his prescription medicines  would
assist the trier of fact to determine the degree of knowledge  or
skill  possessed or the degree of care ordinarily exercised under
the circumstances under AS 09.55.540(a)(1).

     46    Although they do not address the issue in the argument
section  of  their  brief,  the  Hymeses  briefly  reference  the
superior courts decision not to appoint a  Civil Rule 72.1 expert
advisory panel (EAP) in their issue statement.  Because they fail
to make any substantive argument that the superior court erred by
failing to refer the case to an EAP, the Hymeses have waived  the
issue.  See Shearer, 36 P.3d at 1199.

     47    See Shearer, 36 P.3d at 1199.

     48    Gilbert v. Sperbeck, 126 P.3d 1057, 1061 (Alaska 2005).

     49     Breck  v. Ulmer, 745 P.2d 66, 75 (Alaska  1987);  see
Gilbert, 126 P.3d at 1062.

     50    604 P.2d 575 (Alaska 1979).

     51    Id. at 577.

     52    163 P.3d 956 (Alaska 2007).

     53     Id.  at 967 (quoting Jourdan v. Nationsbanc  Mortgage
Corp., 42 P.3d 1072, 1082 (Alaska 2002)).

     54     Id. (quoting Wasserman v. Bartholomew, 38 P.3d  1162,
1171 (Alaska 2002) (internal quotation omitted)).

     55    The Hymeses also appear to allege that granting summary
judgment to Dr. DeRamus and Pomeroy violated their right to trial
by  jury.  However, we have held that the right to trial by  jury
is  not  impinged by summary judgment that was properly  granted.
See  Christensen v. NCH Corp., 956 P.2d 468, 477  (Alaska  1998).
Because  we  hold  that  summary  judgment  was  improper  for  a
different  reason  on the basis that genuine issues  of  material
fact remain as to whether Hymes failure to exhaust administrative
remedies  was  excused   we  need not  reach  the  issue  of  the
constitutional  right  to  a jury trial.   See  Alaska  Trademark
Shellfish, LLC v. State, 91 P.3d 953, 957 (Alaska 2004)  (stating
that  appeals  should ordinarily not be decided on constitutional
grounds when narrower grounds are available).

     56     The  Eighth Amendment provides that [e]xcessive  bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted. U.S. Const. amend. VIII.

     57     Brandon v. Corr. Corp. of America, 28 P.3d  269,  280
(Alaska 2001).

     58    53 P.3d 1115 (Alaska 2002).

     59    Id. at 1125.

     60    Id.

     61    See Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)
([I]ssues  not  briefed or only cursorily briefed are  considered
waived.).

     62    The superior court actually dismissed the claim on the
basis  of Hymess failure to exhaust administrative remedies,  but
we  are  not  bound by the reasoning articulated by the  superior
court  and  can affirm a grant of summary judgment on alternative
grounds, including grounds not advanced by the superior court  or
the parties. Hoffman Constr. Co. of Alaska v. U.S. Fabrication  &
Erection, Inc., 32 P.3d 346, 351 (Alaska 2001).  Thus, we  affirm
the grant of summary judgment as to the elder abuse claim because
the  Hymeses  have waived their argument, and even had  they  not
waived it, the elder abuse statutes do not create a private right
of action.

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